I have written before about how Maine laws define drug trafficking. When that trafficking involves a large amount of drugs, or some other aggravating factor, the crime is elevated to “Aggravated Trafficking in Scheduled Drugs.” That charge forces the judge to impose a mandatory minimum prison sentence but also increases the maximum sentence for the crime. This article discusses how the law works, the sentences involved and the facts the prosecution can allege to enhance drug trafficking to the aggravated crime. There is also a bit of information about Federal drug trafficking charges. Use the links below to navigate to a particular section of the article:

Trafficking Certain Amounts is Always a Class A crime

Trafficking in the following amounts is automatically class A aggravated trafficking with a 4 year mandatory sentence. The amounts are detailed in 17-A §1105-A with specific paragraphs cited in parenthesis:

Cocaine: 112 Grams or more of Powder, 32 grams or more of cocaine base or crack. (¶D)

Amphetamine: 300 or more pills or units, or 100 grams or more. (¶G)

Heroin: 6 grams or more, or 270 packages or more. (¶H)

Oxycodone: Aggregate amount of 8,000 milligrams or more. (¶I)

Hydromorphone: Aggregate amount of 1,000 milligrams or more. (¶I)

Other Narcotic: 300 or more pills or other units. (¶I)

MDMA and other hallucinogenic amphetamines: 300 or more pills or other units (¶J)

Sentencing Class Step up for other Aggravating Factors

If the drug amount does not reach those levels, there are other ways the charges can be enhanced. Title 17-A §1103 lists the normal classification for Drug Trafficking, but if an aggravating factor is proved, the sentencing class increases as provided in 17-A §1105-A. The aggravating factors are discussed in the next section. The following describes how those factors enhance the crime:

Classification Increase for Aggravated Trafficking

From Class B to A Felony: Any schedule W drug, 20 pounds or more of Marijuana

From Class C to B Felony: Any schedule X drug, 1 pound of more of Marijuana

From D Misdemeanor to C Felony: Any schedule Y or Z drug.

As you can see, the kind of drug can determine the class of crime. Here is a guide to Maine’s Drug Schedules:

Maine Drug Classification – Schedules W, X, Y, and Z.

Schedule W: Stimulants such as cocaine and amphetamines; Opiates such as Methadone, Oxycodone and Heroin; some hallucinogens including LSD and MDA; and Barbiturates.

Schedule X: Some depressants; many hallucinogens including Mescaline, Psilocybin, DMT and Hashish; and some tranquilizers including Ketamine.

Schedule Z: Everything else, Marijuana, and all other prescription and non prescription drugs.

Increasing the class of crime triggers the mandatory minimum prison time discussed above, but it also drastically increases the maximum sentence. A previous article discusses Maine’s sentencing structure in Detail. Here is a quick review of the maximum felony sentences:

Maximum Sentences for Maine Felony Crimes

Class C Crime: 5 years in prison | 2 years of probation | $5000 in fines

Class B Crime: 10 years in prison | 3 years of probation | $20,000 in fines

Class A Crime: 30 years in prison | 4 years of probation | $50,000 in fines

Prior Drug Trafficking Conviction as an Aggravator

A prior Conviction for trafficking and certain other drug crimes will increase the class of crime by one class. 17-A §1105-A (B) allows the more severe sentence where:

The person has a prior felony drug conviction in Maine or any other jurisdiction.

The prior conviction can be from any time before to the current offense.

The prior conviction does not need to be for trafficking, it just needs to be a felony.

The statute on use of prior convictions, 17-A §9A, normally requiers that the prior be no more than 10 years before to the present offense. As you can see, they make a special exception for drug crimes.

Proximity to School or other “Safe Zone” as an Aggravator

17-A §1105-A (E) allows for the sentencing increase if the defendant traffics in a certain proximaty to a school or other safe zone. This is a very common factor used to get mandatory sentences in a lot of cases. The statute provides for the increase if:

At the time of the offense, the person is on a school bus or within 1,000 feet of the real property comprising a private or public elementary or secondary school or a safe zone as defined in section 1101, subsection 23

A municipality may designate an area of the municipality that is frequented by minors as a safe zone under Title 17-A, section 1101, subsection 23. A safe zone designated pursuant to this section must be conspicuously marked by the municipality with an informational sign using wording provided by the Commissioner of Public Safety.

I have almost never seen a case involving drug trafficking on a bus or school property. The much more common senario is where someone sells a half gram of crack in a parking lot that is 947 feet from a safe zone as measured on google maps. I have even seen people charged for selling drugs in a moving car that passed within 1000 of a safe zone! The law has no requirement that trafficking involve school children or minors, it just needs to be within 1000 feet as the crow flies. This can create quite a problem since the 1000 foot radius and the expansive definition of “safe zone” covers a large percentage of many urban areas.

These laws are not unique to Maine. Jason Dunkle, a Defense lawyer in Pennsylvania, has written about his State’s school zone drug trafficking enhancement. Attorney James Novak has also noted that Arizona drug trafficking charges can be enhanced in a similar way. Throughout the country, these laws are used to get huge sentences for relatively mundane conduct.

Other Aggravating Factors

The Statute provides several other factors that can increase the sentencing class if:

The person possesses a gun in connection with trafficking. Crime increased one class (¶C-1)

The drug involved is a schedule W drug and causes death. This is a class A crime. (¶K)

The drug involved is a schedule W drug and causes serious injury. This is a class B crime. (¶L)

Defenses to Aggravated Drug Trafficking

These charges are serious and the sentences can be severe, but no sentence can be imposed unless the State proves the charges beyond all reasonable doubt and that’s not always easy to do. First the state has to prove the drug trafficking. Often there is no hand-to-hand transaction but only possession of drugs that the police think are intended for sale. Exactly where the Jury draws the line between trafficking and possession makes a huge difference. Trafficking charges often rely on witness testimony from confidential informants. These people may be unreliable because of their own criminal history, reputation or motivation to fabricate in order to get a more lenient sentence for their own charges. Even if there is a sale, sometimes the drugs are not what the prosecution thinks they are. If they fall into a different schedule they may not trigger the sentencing increases. There may be other issues with drug testing, a major scandal in Massachusetts State Labs compromised thousands of cases in that state. While we have never seen that kind of issue here, lab tests are only as good as the technicians who do the work, and I have seen some lousy work come out of the Maine State Crime Lab.

Even if the trafficking can be proved the prosecutor must also prove the aggravating factor. Prior convictions can only be used under certain circumstances and old priors might be difficult to prove. When proximity to a school or safe zone is alleged, the case must be reviewed very carefully to see whether the zone really counts. I believe that some safe zones are not posted properly or were never officially designated under the statutes, yet the prosecution keeps charging the crimes. It takes a comprehensive understanding of the law and a careful review of each case to figure out if these issue might be defenses. The stakes are very high, talking to a good attorney could save years in prison.

Federal Drug Trafficking

Congress has empowered the Federal Government to regulate controlled substances and so, almost any drug trafficking offense can be charged as federal crime. Often, Federal drug cases start as State court prosecutions. The Federal prosecutors in the United States Attorney’s Office can always choose to take the case and, if they do, the State prosecutors will normally dismiss their trafficking charges. Federal law, found at 21 USC § 841, prohibits the illegal manufacture, distribution, or possession with intent to distribute controlled substances. Federal sentencing can be very complicated and extremely serious. Many mandatory minimum penalties apply and, depending on the amounts and types of drugs involved, 5, 10, or 20 year mandatory minimums may apply. Defendant’s with certain prior convictions can face Mandatory Life Sentences for Federal Drug Trafficking.

Drug Trafficking Conspiracy:
In Federal Court, drug trafficking is often charged as a conspiracy in violation of 21 USC § 846. That means that people who are loosely tied to the drug trafficking itself can be charged with the same Federal crime and held responsible for the entire amount of drugs involved in the operation. As noted above, the Federal Sentencing Guidelines for drug trafficking can be horrific. Defendants in Federal trafficking cases often face decades in prison for conduct that Maine State Courts might punish with relatively short jail or prison sentences.